Watching election coverage last night, the idea was raised a couple of times that if the Democratic nomination comes down to the wire, Hillary Clinton might sue in order to try to have the Michigan and Florida delegates recognized at the convention.

Anyway, my question is whether Clinton would have any basis for a winning lawsuit to have the delegates recognized. Does anyone know what would be the basis for her claim and its odds of success?

I haven't seen this written up anywhere else, so please point me to an analysis if I just happened to miss it.

Karl Rove seemed to suggest that the Democratic Party would simply recognize them out of political expediency--but that seems like it would be quite controversial in light of the fact that she was the only one who was on the ballot in Michigan, so there seems like a real fairness issue there not to mention the precedent it would set.

One other interesting point Rove made that I hadn't been aware of is that in Texas delegates are allocated by state Senate district, but that then number of delegates are based not on the percentage of Democratic vote in the district but the actual number of Democratic votes in the district. He notes that this dramatically reduces the relative weight of Hispanic districts in the state because even though they vote heavily Democratic they tend to have much lower turnout than in other parts of the state. He argues that this weighting probably favors Obama because it essentially weights votes from districts with many black voters more heavily than with many Hispanic voters even if they win a comparable number of districts with a comparable percentage of votes (he implied that black voter numbers in Texas are substantially higher than Hispanic voter numbers). I have been amazed at the amount of complexity and variety that states use in this presidential nomination process.

Update:

Rick Hasen had a piece in Slate last week that addresses this and other "crazy" aspects of the primary caucus season here. His prediction is that courts would be unlikely to intervene in an internal party debate on this question.

A lawsuit was already brought in the Florida federal District Court by Florida Senator Nelson (Bill Nelson, et al., v. Howard Dean, et al.), and was lost last December. The legal precedents are bad. (Democratic Party of U.S. v. Wisconsin (1981) 450 US 107) NAACP Chairman Julian Bond recently petitioned the DNC to seat the Florida and Michigan delegates and let them vote, in the name of the "civil rights" of disenfranchised primary voters. Interestingly, last night the Reverend Al Sharpton (a former presidential candidate himself, and now a "neutral" in the current campaign)commented to MSNBC that he would fight against that very same seating and voting, in the name of the "civil rights" of people who were tricked into not voting in advertised "non-primary" elections. Sharpton is too eloquent, charismatic and connected a politician for his opinion to be ignored by Democrats, in convention or out. The alternative surely will be a meltdown like the 1968 Democratic convention, leading to Nixon's election.

ray, I'm curious if there's a non-trivial distinction between the interest of an open v. closed primary, and the interest of the timing of the primary. After all, in Dem v. Wisc., it's emphatically about the associational rights of the party regarding those who wish to be affiliated with it.

While it's certainly a distinction that, I think, removes it from the table as controlling precedent, I agree that there's not much else to do except frame it as a civil rights discussion. And there's plenty of dicta in Dem v. Wisc. to help out Dean et al. in this case.

The Nelson v. Dean case may be found at 2007 WL 4414710 and relies heavily on open-primary cases.

Did you see on CNN when Clinton's former press secretary discussed this?

Her: These delegates should be seated.
Blitzer: But the contests didn't count.
Her: Clinton still won them
Blitzer: But Obama wasn't even on the ballot in Michigan and wasn't allowed to campaign in Florida
Her: Clinton still won them

Of course she won. Obama, as a new-comer, needs to campaign more than her in order to let people know him. What about his rights not to have delegates seated for her when he didn't even have a fair chance to compete for them. It's completely unsurprising that voters chose the more known candidate.

I had thought this was a credentialing issue to be settled by the convention. If so, it would be a political and not a legal question. The party should be able to judge the qualifications of the delegates at their own convention. If an attempt is made to decide the nomination on this basis, however, it would be a squabble royale. If Obama would win but for the Michigan and Florida delegates pledged to Clinton, and if the Clinton folks attempt to seat those delegates by changing the rules established in advance of the primaries, a good argument could be made that the nomination was stolen. Clinton should not try to win by such tactics.

Clinton will try to win by any tactic necessary. If she can win with FL and MI, then her campaign will stomp their collective feet and lean on anyone they can find to have those states count, never mind her pledge not to compete in those contests.

I think it was ridiculous not to hold a full primary and let the issue of whether or how to count the delegates be resolved later. A "do-over" isn't particularly feasible.

That said, I fear that nothing would do more to ensure a Republican victory than a Clinton nomination based on such tactics. I am indifferent as to which Democrat becomes president so long as one of them does, but a corrupt nomination victory would send independents to McCain and lead many Obama supporters to stay home.

Clinton wants the delegates to be seated for her because she "won" and the voters shouldn't be disenfranchised. Al Sharpton said (and I can't believe I'm agreeing with him, but I am) that they shouldn't be seated, not because Clinton "won" and the voters were disenfranchised, but because those who didn't vote, and didn't write in for Edwards or Obama or Kucinich, would be disenfranchised because they were told that the Dem primaries in Michigan and Florida didn't count. If it now "counts" then those people were disenfranchised.

Ted Olson wrote up some of this in the Wall Street Journal Monday, here.

I hope someone soon answers my question (various details collected here)
relating to Obama's slim "paper trail" -- whether he wrote and published anything of his own in the Harvard Law Review during his 2 years on it.

Seems like a legitimate, and easily answerable, question which one of his 100s of staffers could quickly answer in a comment on this blog.

added to my comment above: those who voted in the Dem primaries in MI and FL anyway, knowing that the delegates wouldn't be seated really can't be disenfranchised by the delegates not being seated. They knew (or should have known) that going in.

Her: These delegates should be seated.
Blitzer: But the contests didn't count.
Her: Clinton still won them
Blitzer: But Obama wasn't even on the ballot in Michigan and wasn't allowed to campaign in Florida
Her: Clinton still won them

Yes, Clinton won all zero of the delegates. The DNC should seat all zero of Clinton's delegates. Give 'em a seat right up there on the dias, too. Make it a party.

Reverend Al Sharpton (a former presidential candidate himself, and now a "neutral" in the current campaign)commented to MSNBC that he would fight against that very same seating and voting, in the name of the "civil rights" of people who were tricked into not voting in advertised "non-primary" elections.

rayfuller,
Hmm. I swear Sharpton was for Hillary, I thought. Is he changing horses now that Obama is looking so good or just starting to hedge his bets? Ah, the fickle friends of politicians. Should be fun to watch.

Would it be possible to hold a caucus or convention in those two States? I would think it would be quicker to organize a caucus/convetion than a new primary election. Obama does much better than Clinton in causcus/convention situations. I bet her people would resist this idea like mad. Under any circumstances, the stage is set for a huge floor fight.

Reverend Al Sharpton (a former presidential candidate himself, and now a "neutral" in the current campaign)commented to MSNBC that he would fight against that very same seating and voting, in the name of the "civil rights" of people who were tricked into not voting in advertised "non-primary" elections.

rayfuller,
Hmm. I swear Sharpton was for Hillary, I thought.

Maybe Sharpton is opposing the seating of the delegates on principle instead of political expediency? LOL?

Could one argue that the exclusion of the Florida delegates has a racially disparate impact on certain minorities, diluting (indeed, obliterating) the effect of their votes, since Florida has a larger-than-average minority population (both regarding blacks and Hispanics)?

Note on Texas delegates: Only Dem delegates are allocated according to number of votes in state Seante districts; Repub delegeates are allocated according to U.S. congressional districts. I'm just trying to decide if I should vote for McCain to minimize a possible Huckabee insurgency, or vote for Hillary to help McCain face a weaker opponent in November.

Note on Texas delegates: Only Dem delegates are allocated according to number of votes in state Seante districts; Repub delegeates are allocated according to U.S. congressional districts. I'm just trying to decide if I should vote for McCain to minimize a possible Huckabee insurgency, or vote for Hillary to help McCain face a weaker opponent in November.

Vote for the person you plan to vote for in the general election. Let the Democrats pick their own candidate by their own rules and then work on defeating them when they've finally done so.

What the heck can Julian Bond be thinking? Does he really believe that forcing pro-Clinton delegations "chosen" in a fraudulent manner so that she can overcome the lead of the first serious African-American presidential candidate is in the best interests of the NAACP?

If it is really important to have these states represented at the convention, the state parties can easily organize late caucuses to choose delegates. Not sure that Hillary would look forward to competing with Obama in caucuses.

I view Michigan and Florida differently. In Michigan, only Clinton's name was on the ballot. The others were just listed as 'other'. So no one can know how to allocate the 'other' vote. But in Florida, the candidates were listed separately. In deference to the national party's rules, the candidates just didn't campaign in Florida. But given the national nature of news, does that really make a difference? People still had the option of exercising their choice.

The other twist in this is that I heard that the superdelegates from these states won't be counted either. The bigwigs who are prevented from selling their votes will scream bloody murder over this.

Did DOJ approve either the switch in primary date law or the sanction?

What does the DOJ have to do with it? I thought the political parties set their own rules for primaries and enforced them. There are many differences between states (some have primaries, some caucuses--in the old days, most just had state conventions) and differences between parties in the same state (in the Democratic Party the delegates are usually apportioned while in the Republican Party they are usually winner-take-all). Racial discrimination would invalidate a primary rule, but I haven't heard any allegations of this. In my state, the primary is not even considered a state election--its a party event. Does the DOJ supervise all of this? By what authority?

Her: These delegates should be seated.
Blitzer: But the contests didn't count.
Her: Clinton still won them
Blitzer: But Obama wasn't even on the ballot in Michigan and wasn't allowed to campaign in Florida
Her: Clinton still won them

Yeah, and Shaun "the Flying Tomato" White won the 2006 Olympic Gold Medal in the men's halfpipe. Neither of which should have any relevance to the nomination.

I don't see how this could even come close to being a statutory issue, let alone a constitutional one.

If the Democratic Party decided to choose its nominee by having the candidates play a round robin tournament of beer pong, then they'd be well within their rights doing so, because the Democratic Party is a private organization. Winning the Democratic Party's nomination doesn't mean a thing to the actual determination of who becomes president. If the courts stepped in and said that it did, then they would, in effect, be constitutionalizing the two party system, which, as we all know, is no where in the constitution (although some might make a case for the 12th amendment as having done so).

If Florida and Michigan were denied the right to cast votes in the electoral college, or, if Democrats were barred from casting votes in November, then you would have a serious issue.

If Clinton feels that the Democratic voters of Michigan and Florida have been unfairly excluded from the nomination process, then she can take it up with the party. If this rises to the level of a constitutional issue, then so would, I think, the fact that each party does not distribute its delegates on a straight population basis. Each one alters the number of delegates that a state sends to the convention based upon how strong the party's electoral support is in the state. And both parties also give certain members of the party free convention votes that have nothing to do with the primary or caucus voting that goes on in the state. If Clinton gets the courts to force the Florida and Michigan delegation to be seated, then I can see where Utah Democrats could make a case that they are unfairly underrepresented at the convention while New York is unfairly overrepresented.

Bretzky, the problem is that there is SCOTUS precedent against you. The parties are semi-public entities in many ways. The cases are called the "white primary" cases.

Years ago, the parties agreed never to nominate any black candidates and not to let blacks be part of their primaries. They made the same argument you're making; they're private entities that can do what they want. SCOTUS eventually broke them.

I don't think that an equal protection or disenfranchisement argument can be made in a system that has caucuses, which are inherently unfair. They disenfranchise anyone who can't be present on the appointed day and the appointed hour which excludes all military stationed overseas or out of state, parents with small children, people who are hospitalized or in nursing homes and people who have to work those hours. A disenfranchisement argument puts the entire caucus system into question.

I think this is going to come down to a knock-down, drag-out fight on the floor of the Democratic Convention. The Clintons will do just about anything to get this nomination, and I don't think either candidate is above playing dirty. I, for one, plan to sit back and watch with a big tub of popcorn, because however it plays out, it's going to be a lot of fun to watch Democrats argue over disenfranchising voters.

There we go ... but if a lawsuit is filed to recognize and count Florida's delegates, then another lawsuit will be filed on behalf of those Floridians who were misled to believe their votes were not going to count and in detrimental reliance thereupon, did not vote; but whom, if the vote is going to be counted, would have and still want to vote and be counted. And I would not be surprised to see such a lawsuit include a count for violation of Title II of the Americans With Disabilities Act in the context of voting.

I don't think many people who support Hilliary realize that the majority of Florida's disabled voters are against Hilliary as President, and want Obama. Most of these disabled Floridians were disenfranchised from voting in the primaries that resulted in Hilliary taking the spoils based on the representations the votes would not be counted.

It is pretty simple why Florida's disabled voters are against Hilliary, really.

In a nutshell, disabled voting Floridians are outraged by thousands of incidents of sbuse of disabled people at the hands of Florida governmental officials like THIS, and because of this they see the following Hilliary problem:

It is the Feminazi attitude exemplified by Hilliary that hurts disabled people. The "I am Invincible" mindset the gender equality crowd likes to use to show how tough they are in a "Man's world." They like to beat up disabled people to show they are tough enough to be equal to men.

Disabled people don't want or need no more Helen Reddy "I am woman-hear me roar" -- what Florida's disabled voters need is a Presidential candidate they can believe in like those with a solid civil rights background who idolize the likes of Helen Keller

Bretzky, the problem is that there is SCOTUS precedent against you. The parties are semi-public entities in many ways.

This is a very disturbing notion for me.

For a country to long remain free, the parties or associations by which the people organize themselves to engage in political activity must remain completely independent of the government itself. Even a semi-public definition of political parties is a dangerous situation.

The conflation of government and party--be it a monopoly or duopoly party system--most likely leads to the cementing of the party(ies) in the places of power. If they are not able to adapt to meet the needs of the people, then political parties must be allowed to die. By fixing their place in the halls of power, political parties can ignore the wishes of the people and, if they so choose, deny power to those who do not join one of the official parties. In effect, the parties come to represent their own interests, not those of the people.

calmom- precisely right. Anyways, any disenfranchising or other nonsense that occurs during the primary will be paid for when it comes to the real vote.

Which brings me to my next point- I am amazed at the insanity of the Democratic Caucus (which is my nominally my party) penalizing Florida voters in the primary. Gee it's not like Florida is likely to be a swing state and both parties should be doing everything in their power to suck up to voters there.

For a country to long remain free, the parties or associations by which the people organize themselves to engage in political activity must remain completely independent of the government itself.

Well, that has rarely been the case in this country or in any of the European democracies, so I think your concern is overblown.

The Court argued that state governments delegate governmental functions to the parties. When the parties are exercising those functions, they must act with the same restrictions as the government.

In most states, the Democratic and Republican nominees automatically get on the general election ballot. Third-party candidates must jump through many loopholes. In exchange for this EZ Pass to the ballot, the parties have certain constitutional restrictions placed on them.

Completely private organizations, of course, can do what they want. Parties don't fit that description.

The conflation of government and party--be it a monopoly or duopoly party system--most likely leads to the cementing of the party(ies) in the places of power.

Of course. That's why the parties do it, despite the "restrictions" they take on as a result.

Some minor cementing is necessary for manageability reasons. European countries have tried to 'loosen things up' and gone too far, creating tens of parties with no cohesion.

I am amazed at the insanity of the Democratic Caucus (which is my nominally my party) penalizing Florida voters in the primary. Gee it's not like Florida is likely to be a swing state and both parties should be doing everything in their power to suck up to voters there.

Well, both parties screwed MI and FL. But the parties were over a barrel, because IA and NH were pressuring them to punish the states that broke da rulez.

I think we haven't even begun to see the magnitude of this clusterfuck, though.

Senator Clinton's willingness to play Calvinball is disturbing. Here's hoping that, by the time of the convention, she is sufficiently magrinalized that the question of delegates from Michigan and Florida becomes academic.

Adam J's point was precisely Karl Rove's point--there is no way the Democratic Party will not count the primary votes of two large swing votes. How to get from here to there is not obvious though.

Zywicki,

If they do that and deny Obama the nomination by so doing, you will see a lot of black Republicans or a lot of Black non-voters. On the other hand, Latinos are not voting for Obama. As much as part of me says this is going to be fun to watch, another part of me says this is going to get really, really ugly.

Perhaps someone with time and a talent for numbers will subtract the black vote for Kerry in each state and see how that would have effected the outcome in each state. If blacks had not cast any dem votes in 2004, what states would have moved from the dem to republican column? I grant that's an exteme position, but it would serve to bracket the potential when we get into the serious "what if" mode.

The parties and primary are not independant of the government in Michigan.

There was a very important Michigan Supreme Court decision in the end of 2007. It does not have a reporter number yet, the the lexis code is 2007 Mich. LEXIS 2894.

It found that the party primary elections are state elections and serve a public, not a private, purpose.

That case plus the fact that blacks live in Michigan and hispanics in Florida where they get punished for voting early, and whites in all the non-VRA states plus one black state that is a VRA state got to go early---

means the michigan primary was a public election. Hill wins the michigan delegates.

Dan Weber- The parties should have told IA and NH to go fly a kite though. IA and NH were just whining because they liked having the earliest primaries so that they can have a disproportionate say in who gets nominated. Not the most legitimate of reasons, and the consequences of not counting Fl and MI can be far more dangerous then the consequences of ignoring IA and NH.

"Wait, it was a BLACK PERSON who dumped the disabled man out of this wheelchair. I guess that means the disabled folks won't vote for a black person, either!!!1one" ---->

NO. It was a black WOMAN who abused and discriminated against the quadraplegic in the wheelchair by dumping him on his face at the risk of breaking his neck.

Black MEN do not suffer from the Helen Reddy need to prove "I am Invincible" complex of having to bully, abuse, and discriminate against weaker, vulnerable disabled people to prove they are equal to a man -- only WOMEN educated in the Helen Reddy gender equality do this, white, black, or otherwise.

The gender equality Helen Reddy "hear me roar" set only like extremely physically able strong perfect WOMEN; they do NOT embrace women who are domestic violence victims left by battering with physical disabilities within their gender equality group. This is FACT well known by disabled people across this Nation experienced over many years.

THAT is why we need more Helen Keller -- a genuinely strong disabled woman hated by the gender equality set for her intelligence despite her deafness and blindness, making her weaker and more vulnerable physically.

"If you really have evidence that 1) the disabled don't like Hillary, and 2) the disabled are a significant portion of Florida's voting population compared to other states, then, please, present that." ---->

It's not that people don't like Hilliary; disabled Americans don't like what she stands for, her Helen Reddy gender equality, the refusal of Bill Clinton's DOJ to enforce disabled people's rights to State Courts access, and the reality is her time is past.

You are waaayy off the mark with your dumb dumb assumptions disabled people won't vote for a black man for President -- watch as the vote unfolds and you will see.

"means the michigan primary was a public election. Hill wins the michigan delegates." --->

Beyond not counting your delegate-chickens before they hatch with respect to Florida, I would not be counting them before with Michigan, either. Have you bothered to check lately how Title II Americans With Disabilities Act conscious MICHIGAN has become lately?

Think there's not a Michigan Bar member whorth his.her salt that would not file a Title II ADA lawsuit on behalf of Michigan's disabled people disenfranchised from having their votes for Obama counted?

"I don't think that an equal protection or disenfranchisement argument can be made in a system that has caucuses, which are inherently unfair. They disenfranchise anyone who can't be present on the appointed day and the appointed hour" -----?

WHAT ???!!!! The person who made this DUMB remark has his/her head STUCK IN A TITLE II AMERICANS WITH DISABILITIES ACT OSTRICH HOLE.

Listen (for all you Title II ADA ignoramuses), Title II requires removal of transportation barriers and anyone who read Dees v. City of Austin, Texas, would know Title II of the ADA requires accessible time/date scheuling so as NOT to exclude (disenfranchise, if we are applying Title II to caucus voting) disabled Americans.

Title II of the ADA enforces the equal protection clause of the Fourteenth Amendment.

What a bunch of highly educated STUPID people make comments like the above remark?

Think there's not a Michigan Bar member whorth his.her salt that would not file a Title II ADA lawsuit on behalf of Michigan's disabled people disenfranchised from having their votes for Obama counted?

Mary, Hill faked Obama into withdrawing from the Michigan race by making a deal she would as well.

"Mary, Hill faked Obama into withdrawing from the Michigan race by making a deal she would as well." --->

And your point is..?

She did not just fake Obama, she failed to effectively communicate the score with (faked) the disabled voters. For THAT a Title II ADA suit could be invoked to obliterate her MI delegates.

I don't think Mrs. "I am Woman" should discount the numbers of people with disabilities in MI or Florida who would sue over this vote. I could get Floridas's numbers of disabled. I believe the figure is listed in a couple recent official reports I have read.

It's pretty clear Rove wants to help Hilliary sue to get the MI and Florida delegates counted; but they themselves can be sued for just the opposite ... by millions of MI and Florida disabled who want Obama.

I'm genuinely curious about this. According to Wikipedia, Michgan is about 10M people and Florida is about 16M people (both numbers rounded up), for a total of 26M people. To get to millions of disabled in those states, at least 1 out of 13 people would have to be disabled. Is the number of people with standing under the ADA really that high?